CAFE Brief 05/03: Flood’s letter, Barr’s testimony, and Emoluments

CAFE Brief 05/03: Flood’s letter, Barr’s testimony, and Emoluments

The list of topics for Monday’s episode of CAFE Insider is growing. Become a member at cafe.com/insider to hear Preet Bharara and Anne Milgram address the latest news at the intersection of law and politics.

In a whirlwind of a week, we saw the Attorney General accused of breaking the law, more stonewalling from the White House, and the approval of another Emoluments lawsuit. Let’s dive in!

WASHINGTON, DC – JANUARY 09: Acting White House Counsel Emmet Flood walks in the halls of the Russell Senate Office Building before heading into the offices of Senate Intelligence Committee Chairman Richard Burr on Capitol Hill January 09, 2019 in Washington, DC. President Donald Trump appointed Flood to temporarily serve as White House counsel after Don McGahn resigned last year. (Photo by Chip Somodevilla/Getty Images)

Flood’s letter

White House lawyer Emmet Flood sent a five-page letter to Attorney General Bill Barr the day after the release of the Mueller report, criticizing the Special Counsel for leaving the obstruction question unanswered. “What prosecutors are supposed to do is complete an investigation and then either ask the grand jury to return an indictment or decline to charge the case,” Flood writes. Instead, Mueller “produced a prosecutorial curiosity — part ‘truth commission’ report and part law school exam paper,” Flood goes on to state. The letter, according to news analysis by Reuters, is “in line with Trump’s confrontational approach to dealing with a Democratic effort to use the Mueller report as a springboard into more investigations.”

Bill Barr’s Senate hearing

Barr defended his handling of the Mueller report on Wednesday, telling the Senate Judiciary Committee that he did not believe Trump obstructed justice. Barr argued that the President’s constitutional authority to fire Mueller made it too difficult for the government to prove a corrupt intent beyond a reasonable doubt. As summarized by NBC News, Barr also admitted that he did not review the underlying evidence from Mueller’s investigation and seemed unfamiliar with key evidence contained in the report.

The Senate hearing took place hours after The Washington Post reported that Mueller sent Barr a letter expressing concerns that the Attorney General’s four-page summary to Congress “did not fully capture the context, nature and substance of this office’s work and conclusions.” Barr called the letter “a bit snitty” and claimed Mueller was worried about media coverage but did not think his letter to Congress was inaccurate.

Citing Barr’s previous testimony in which he claimed to be unaware of concerns raised by Mueller’s team, Democratic senators accused him of “purposely misleading” Congress and engaging in “masterful hairsplitting.” Meanwhile, in her weekly news conference on Thursday, House Speaker Nancy Pelosi said Barr “lied to Congress,” adding, “if anybody else did that, it would be considered a crime. Nobody is above the law. Not the president of the United States, and not the attorney general.”

Barr, So Far

Writing for CNN, former SDNY prosecutor Elie Honig called Barr’s testimony “a master class in obfuscation, backtracking and blame-shifting,” criticizing his “unpersuasive” and “downright bizarre” explanations for his handling of the Mueller investigation.

Neal Katyal, who drafted the special counsel regulations, wrote in The New York Times that the regulations were designed to withstand “a nefarious attorney general” who might interfere with the special counsel’s findings from becoming public, and that’s why the special counsel is “not a regular Justice Department employee” and “could leave the department and testify.”

Former FBI Director James Comey ventured to explain why respected leaders like Barr and Deputy Attorney General Rod Rosenstein compromise their character and values once they work in the Trump Administration. Calling Trump an “amoral leader,” Comey argues in The New York Times that “[a]ccomplished people lacking inner strength can’t resist the compromises necessary to survive Mr. Trump and that adds up to something they will never recover from.”

Bill Barr’s House hearing

Barr was scheduled to testify before the House Judiciary Committee on Thursday, but canceled after Chairman Jerry Nadler insisted upon extended questioning by staff attorneys as well as lawmakers. Nadler held the hearinganyway, using the opportunity to condemn Barr and the administration’s posture of stonewalling congressional oversight. “When push comes to shove, the administration cannot dictate the terms of our hearing and our hearing room,” Nadler told reporters.

The Justice Department also notified the Committee by letter that it would not comply with a subpoena for the unredacted Mueller report. Nadler said he will continue negotiations for the unredacted report, though the Committee “will have no choice but to move quickly to hold the attorney general in contempt if he stalls or fails to negotiate in good faith.”

WASHINGTON, DC – MAY 02: House Speaker Nancy Pelosi (D-CA) speaks during her weekly news conference on Capitol Hill, May 2, 2019 in Washington, DC. Among the topics discussed were the Mueller Report and Attorney General William Barr’s failure to appear before the House Judiciary Committee earlier in the day. (Photo by Mark Wilson/Getty Images)

George Papadapolous

The FBI sent an undercover investigator to meet Trump campaign adviser George Papadopoulos in 2016 as “part of the counterintelligence inquiry opened that summer to better understand the Trump campaign’s links to Russia,” according to The New York Times. The use of an undercover agent, the Times reports, “is one previously unreported detail of an operation that has become a political flash point in the face of accusations by President Trump and his allies that American law enforcement and intelligence officials spied on his campaign to undermine his electoral chances.”

Deutsche Bank lawsuit

President Trump, Don Jr., Eric, Ivanka, and the Trump Organization have sued Deutsche Bank and Capital One to prevent the companies from complying with House subpoenas for financial information. The lawsuit alleges the subpoenas “have no legitimate or lawful purpose” and “were issued to harass President Donald J. Trump.” A court hearing is scheduled for May 22, according to CNN.

Emoluments lawsuit

U.S. District Court Judge Emmet Sullivan ruled that a lawsuit brought by congressional Democrats against President Trump for allegedly violating the Emoluments Clause of the Constitution can proceed. Trump’s lawyers argued the Emoluments Clause is not a blanket ban on the President conducting private business transactions with foreign governments, The Washington Postreports. Judge Sullivan disagreed in his opinion, writing that the Emoluments Clause prohibits “the President from accepting ‘any present, Emolument, Office, or Title, of any kind whatever’ from a foreign state without obtaining ‘the Consent of the Congress.’”

Following Judge Sullivan’s decision, Reuters reported that at least seven foreign governments have rented luxury condominiums in Trump World Tower without approval from Congress.

Security clearance hearing

On Wednesday, former security clearance supervisor Carl Kline was questioned in a closed-door hearing before the House Oversight Committee. NBC News reported Democrats were unhappy with Kline’s answers, saying he did not provide specific details. Rep. Raja Krishnamoorthi suggested, “the White House [is] basically instructing the witness not to answer questions that are very pertinent to our inquiries.”

Compounding their frustration, White House Counsel Pat Cipollone sent a letter to the Committee refusing to hand over documents pertaining to security clearances. “[T]he committee’s demands fall well outside the realm of legitimate congressional information request,” Cipollone wrote.

Erik Prince perjury referral

House Intelligence Committee Chairman Adam Schiff has submitted a criminal referral to the Justice Department for Blackwater founder Erik Prince, accusing him of “knowingly and willfully” making false statements to Congress. The referral identifies six instances in which Prince’s testimony about his meeting with Russian financier Kirill Dmitriev in the Seychelles differs from Mueller’s report. “In very material ways I think the evidence strongly suggests that he willingly misled our committee, and the Justice Department needs to consider whether there’s a prosecutable case,” Schiff told The Washington Post.

Rosenstein’s resignation

Rosenstein submitted his resignation, effective May 11. In his resignation letter to President Trump, Rosenstein wrote he was “grateful to you for the opportunity to serve; for the courtesy and humor you often display in our personal conversations; and for the goals you set in your inaugural address: patriotism, unity, safety, education and prosperity.”

What else?

President Trump dismissed Democrats’ efforts at getting former White House counsel Don McGahn and other administration officials to testify, telling Fox News: “They’ve testified for many hours, all of them. I would say, it’s done.”

A New York State Senate Committee voted to advance a bill that would provide President Trump’s state tax returns to congressional committees.

The New York Attorney General’s Office has opened an inquiry into the working conditions and wages at the Trump National Golf Club in Westchester, New York. The Washington Post reports that undocumented former workers at the property claim they were “routinely shortchanged on their pay” and were “required to perform unpaid side work.” The inquiry, the Post notes, “could raise awkward political questions for Trump, who has made stopping illegal immigration a centerpiece of his presidency and his reelection campaign.”

House Intelligence Committee Chairman Adam Schiff has hired Patrick Fallon, the former chief of the FBI’s Financial Crimes Section, to assist the Committee in probing President Trump’s financial dealings, according to The Daily Beast.

We hope you’re enjoying the CAFE Brief. Email us at letters@cafe.com with your suggestions of articles and analysis of legal and political news. We look forward to your feedback as we continue to expand CAFE content.